COPYCENSE

“The U.S. Supreme Court will review a patent infringement case against eBay, granting the online auctioneer’s petition on Monday.

“The matter under review is whether to allow MercExchange, the plaintiff in the case, to obtain a permanent injunction against eBay related to the way it handles fixed-price sales. A district court in 2003 found that eBay’s “Buy It Now” feature infringed on two MercExchange patents. Buy It Now allows consumers to purchase an item without participating in an auction.

“A federal appeals court later ruled in favor of a permanent injunction and awarded MercExchange $25 million in damages. The appeals court also ruled that eBay had infringed on only one of MercExchange’s patents.”

Alorie Gilbert. Supreme Court: We’ll Review eBay’s Patent Case. News.com. Nov. 28, 2005.

CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC.

“This is a summary report of findings from a study of takedown notices under Section 512 of the Digital Millennium Copyright Act. Section 512 grants safe harbor from secondary copyright liability … to online service providers (OSPs), such as Internet access providers or online search engines. In order to receive the safe harbor, online service providers respond to cease-and-desist letters from copyright complainants by pulling their users’ information—web pages, forum postings, blog entries, and the like—off the Internet. Because the OSP is removing material in response to a private cease-and-desist letter that earns it a safe harbor, no court sees the dispute in advance of takedown.

“In this study, we traced the use of the Section 512 takedown process and considered how the usage patterns we found were likely to affect expression or other activities on the Internet. [We] found some interesting patterns:

• Over half—57%—of notices sent to Google to demand removal of links in the index were sent by businesses targeting apparent competitors;
• Over a third—37%—of the notices sent to Google targeted sites apparently outside the United States.”

Jennifer M. Urban and Laura Quilter. Efficient Process or “Chilling Effects”? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act (Summary Report). No date.

Search & Text Mining Report™ K. Matthew Dames & Stephen E. Arnold on the business, technology, and law of search.

“Google Print has stirred up a hornet’s nest of controversy, but another company has been offering online book search capabilities, with the blessings of publishers, for years.

“Ebrary has been around since 1999. The company offers numerous services including one that lets you search and read over 20,000 in-copyright books for free. You pay only to print and copy text.”

Gary Price. A (Non-controversial) Alternative to Google Print. Search Engine Watch. Nov. 21, 2005.

See also:

Will Knight. Battle for the Digital Bookshelf Gains Momentum. NewScientist.com. Nov. 4, 2005.

CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC.

“This is a summary report of findings from a study of takedown notices under Section 512 of the Digital Millennium Copyright Act. Section 512 grants safe harbor from secondary copyright liability … to online service providers (OSPs), such as Internet access providers or online search engines. In order to receive the safe harbor, online service providers respond to cease-and-desist letters from copyright complainants by pulling their users’ information—web pages, forum postings, blog entries, and the like—off the Internet. Because the OSP is removing material in response to a private cease-and-desist letter that earns it a safe harbor, no court sees the dispute in advance of takedown.

“In this study, we traced the use of the Section 512 takedown process and considered how the usage patterns we found were likely to affect expression or other activities on the Internet. [We] found some interesting patterns:

• Over half—57%—of notices sent to Google to demand removal of links in the index were sent by businesses targeting apparent competitors;
• Over a third—37%—of the notices sent to Google targeted sites apparently outside the United States.”

Jennifer M. Urban and Laura Quilter. Efficient Process or “Chilling Effects”? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act (Summary Report). No date.

CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC.

Commentary by K. Matthew Dames, executive editor.

One of the things I enjoy about the current spate of copyright battles is analyzing the way the Big Content uses its media and public relations machinery to frame the debate. For example, I find it interesting that Big Content consistently characterizes as “stealing” or “theft” any access to, or use of, a protected work that is unlicensed or uncompensated. It’s as if Big Content has shrunk the 1976 Copyright Act down to a handful of sections that include Section 106 (which deals with a copyright owner’s exclusive rights) and the five sections of Chapter 12 (which is where Congress codified the Digital Millennium Copyright Act).

By framing the copyright debate exclusively from the perspective of an owners’ exclusive rights, Big Content establishes an interesting paradigm: if one does not ask permission to use or access a copyrighted work before using or accessing that work, that person is “stealing.” In other words, if you don’t ask permission to access, use, copy, distribute, or remix, you’re stealing. But the frame has equally important, related tentacles. For example, if you don’t wait to receive permission to access or use protected works, Big Content tags you as a thief. Further, if you use or access after Big Content’s explicit rejection of permission, then Big Content portrays you as a thief.

Of course, this frame ignores the multitude of limitations, exceptions, and exemptions the Copyright Act includes for the benefit of parties other than copyright owners. (Many of these limitations and exceptions to copyright are codified sequentially within the Copyright Act at Sections 107 through 122.) These limitations establish a pair of critically important premises that rebut Big Content’s frame. First, under certain circumstances, non-owners do not need a copyright owner’s permission to access, use, copy, redistribute, or remix protected works. Second, and more importantly, non-owners that use the same set of limitations do not need to ask for permission to access, use, copy, redistribute, or remix.

Despite these limitations, Big Content hammers home this “theft” frame, mostly because the frame is supports its property rights position. There is a surreptitious danger, however, involved in debating Big Content on whether a certain action (or lack of action) is “stealing” or “theft.” If you do that, you’re automatically accepting the fundamental proposition that intellectual property is always and forever private property that may be stolen, instead of public property that Congress affords an exclusive, limited commercialization period.

Put another way, we should consider copyrighted works as public property that is on loan temporarily to the copyright owner, instead of private property that is temporarily on loan to the public. That slight change in perspective allows us to dispense with the frame. The perspective change also allows us a heightened awareness to the limitations and exceptions the Copyright Act provides.

Read the rest of this entry »

“Representatives from the United States and nations that had sought to break up some of its control over the Internet reached an accord on Tuesday night that leaves the supervision of domain names and other technical resources unchanged. They agreed instead to an evolutionary approach to Internet management.

“But the accord, a document of principles that delegates from more than 100 countries worked out here after more than two years of sometimes fiery argument, also established a new international forum intended to give governments a stronger voice in Internet policy issues, including the address system, a trade-off that the Americans were willing to accept.”

Victoria Shannon. A Compromise of Sorts on Internet Control. The New York Times. Nov. 16, 2005.

See also:

Red Herring. U.S. Retains Internet Control. Nov. 16, 2005.

Declan McCullagh. U.S. Reaches Net Detente with U.N. ZDNet. Nov. 16, 2005.

Ben Charny. ICANN Faces Further Fire. eWeek. Nov. 16, 2005.

(Editor’s Note: The Times allows free access to their stories on the Web for seven days before sending the stories to the paper’s fee-based Archive.)

CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC.

“The United Nations’ World Summit on the Information Society began with a high-minded purpose: to bridge the technological gap between richer and poorer nations. But now the WSIS event, which begins Nov. 16 in Tunisia, has transformed into a week-long debate about who should control key portions of the Internet.

“Delegates from nations like Iran, China, and Cuba have been clear in what they want: less control by the U.S. government. Instead, they’ve suggested creation of some sort of cyberbureaucracy—perhaps under the U.N. International Telecommunication Union.”

Declan McCullagh. Newsmaker: Internet Showdown in Tunis. News.com. Nov. 11, 2005.

See also:

United Nations. World Summit on the Information Society.

Bill Thompson. Development Matters More Than Domains. BBC News. Nov. 11, 2005.

Associated Press. Showdown Over Control of Net Expected at U.N. Summit. SiliconValley.com. Nov. 10, 2005.

David Talbot. ICANN Feud: It’s So 1995. Technology Review. Nov. 9, 2005. (“The original grand goal of the United Nations’ World Summit on the Information Society was to devise a strategy for lifting the developing world into the information age. But another issue has risen to the fore: multi-national control of the naming system on the Internet, a job now done by the Internet Corporation for Assigned Names and Numbers (ICANN), a California-based organization that oversees the Internet’s domain name and addressing system. All of this discussion over back-end architectures, however, misses the point of the U.N. summit, which should focus on basic questions of access, security, and censorship.”)

Gene J. Koprowski. Academics Take Sides in ICANN Tug of War. eWeek. Nov. 4, 2005.

CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC.